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Emory Law Journal Volume 70 Issue 1 2020 Impeachable Speech Katherine Shaw Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Recommended Citation Katherine Shaw, Impeachable Speech, 70 Emory L. J. 1 (2020). Available at: https://scholarlycommons.law.emory.edu/elj/vol70/iss1/1 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. SHAWPROOFS_9.30.20 9/30/2020 11:50 AM IMPEACHABLE SPEECH Katherine Shaw* ABSTRACT Rhetoric is both an important source of presidential power and a key tool of presidential governance. For at least a century, the bully pulpit has amplified presidential power and authority, with significant consequences for the separation of powers and the constitutional order more broadly. Although the power of presidential rhetoric is a familiar feature of the contemporary legal and political landscape, far less understood are the constraints upon presidential rhetoric that exist within our system. Impeachment, of course, is one of the most important constitutional constraints on the president. And so, in the wake of the fourth major presidential impeachment effort in our history, it is worth pausing to examine the relationship between presidential rhetoric and Congress’s power of impeachment. Although presidential rhetoric was largely sidelined in the 2019–2020 impeachment of President Donald Trump, presidential speech actually played a significant role in every other major presidential impeachment effort in our history. Prior to President Trump, three presidents had faced serious impeachment threats: Andrew Johnson, in 1868; Richard Nixon, in 1974; and Bill Clinton, in 1998 and early 1999. In each of these episodes, the debate around impeachment encompassed, among other things, public presidential rhetoric—lies and misrepresentations; statements that took aim at Congress or undermined the rule of law. In the case of Andrew Johnson, presidential rhetoric formed the basis of one of the articles of impeachment approved by the House of Representatives. In the case of Richard Nixon, the first article of impeachment approved by the House Judiciary Committee—though never considered by the * Professor of Law, Benjamin N. Cardozo School of Law. For generous feedback on earlier drafts, my thanks to Aditya Bamzai, Frank Bowman, Steven Calabresi, Chris Hayes, Deborah Hellman, Michael Herz, Jim Pfander, David Pozen, Daphna Renan, Miriam Seifter, Jeffrey Tulis, participants in Cardozo Law School’s Presidency Workshop, and participants in faculty workshops at the Chicago-Kent Law School, the Maurice A. Deane School of Law at Hofstra University, the Northwestern University Pritzker School of Law, the University of Virginia School of Law, and the University of Wisconsin School of Law. Thanks also to Lisa Angeles, Yael Ben Tov, Bella Pori, and Charlie Sachs for superb research assistance, and to Ingrid Mattson at the Cardozo Law Library for indispensable guidance. I first developed some of the ideas in this piece in a short essay titled Impeachment and Presidential Rhetoric, written as part of a symposium on Laurence Tribe and Joshua Matz’s TO END A PRESIDENCY: THE POWER OF IMPEACHMENT. Kate Shaw, Impeachment and Presidential Rhetoric, TAKE CARE (June 14, 2018), https://takecareblog.com/blog/impeachment-and-presidential-rhetoric. SHAWPROOFS_9.30.20 9/30/2020 11:50 AM 2 EMORY LAW JOURNAL [Vol. 70:1 full House—made extensive reference to the president’s public statements. And one of the possible offenses identified in Independent Counsel Ken Starr’s impeachment referral focused on Bill Clinton’s lies to the American people; an impeachment article tracking that recommendation was initially debated by the House Judiciary Committee, but the language regarding public speech was removed before the committee vote. These aspects of impeachment history have largely escaped scholarly notice, and they may prove instructive as both Congress and the public debate impeachment, as well as other possible constraints on presidential rhetoric and presidential power, in 2020 and beyond. INTRODUCTION ................................................................................................. 3 I. THE PRESIDENT’S WORDS IN IMPEACHMENT PROCEEDINGS: A BRIEF HISTORICAL OVERVIEW ........................................................................ 7 A. Andrew Johnson: “Intemperate, inflammatory and scandalous harangues . peculiarly indecent and unbecoming in the chief magistrate of the United States” ................................................ 11 B. Richard Nixon: “False and misleading public statements . contrary to his trust as president and subversive of constitutional government” .................................................... 21 C. Bill Clinton: “Mis[leading] his family, his friends and staff, and the Nation to conceal the nature of his relationship with Ms. Lewinsky” ................................................................................... 32 II. ANALYSIS: IMPEACHABLE SPEECH ...................................................... 39 A. The Function of Precedent in Impeachment ............................... 40 B. Impeaching “The Rhetorical President” .................................... 42 C. Lies and Misstatements ............................................................... 45 D. Incitement ................................................................................... 47 E. “Anticonstitutional” Statements and Conduct ........................... 49 F. Beyond “High Crimes and Misdemeanors” ............................... 50 G. Constitutional Shields ................................................................. 52 III. PRESIDENT TRUMP AND IMPEACHABLE SPEECH .................................. 56 A. Lies and Misstatements ............................................................... 57 B. Incitement ................................................................................... 57 C. “Anticonstitutional” Speech & Demagoguery ........................... 59 CONCLUSION ................................................................................................... 62 SHAWPROOFS_9.30.20 9/30/2020 11:50 AM 2020] IMPEACHABLE SPEECH 3 INTRODUCTION Since taking office in January 2017, President Donald Trump has used the bully pulpit in ways that break, often dramatically, from the rhetorical norms that preceded him.1 So it is perhaps not surprising that the President’s rhetoric was at the center of a number of early calls for his impeachment. One of the articles of impeachment introduced by Representative Al Green in December 2017 identified President Trump’s support for “white supremacy, bigotry, racism, anti-Semitism, white nationalism [and] neo-Nazism,” and accused him of “inciting hate and hostility” by “sowing discord among the people of the United States, on the basis of race, national origin, religion, gender, [and] sexual orientation.”2 In 2019, after President Trump told George Stephanopoulos that if offered opposition research by Russia or China prior to the 2020 election, “I think I’d take it,”3 Elizabeth Warren responded by tweeting, “It’s time to impeach Donald Trump.”4 The President’s mid-2019 attack on four freshman Congresswomen, including a suggestion that they “go back . to the crime infested places from which they came” (all are women of color, all are American citizens, and three were born in the United States)5 resulted in a House resolution 1 For discussions of presidential speech in the judicial rather than impeachment context, see Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 TEX. L. REV. 71 (2017); Katherine Shaw, Speech, Intent, and the President, 104 CORNELL L. REV. 1337 (2019). 2 Impeaching Donald John Trump, President of the United States, of High Misdemeanors, H.R. 646, 115th Cong. § 1 (2017); see also Osita Nwanevu, The Case for Impeaching Trump for Bigotry, NEW YORKER (May 26, 2019), https://www.newyorker.com/news/our-columnists/the-case-to-impeach-trump-for-bigotry. 3 Interview by George Stephanopoulos with Donald J. Trump, President of the United States (June 16, 2019). 4 Elizabeth Warren (@ewarren), TWITTER (June 12, 2019, 4:28 PM), https://twitter.com/ewarren/status/ 1138951312513601536. 5 See Donald J. Trump (@realdonaldtrump), TWITTER (July 14, 2019, 5:27 AM), https://twitter.com/ realDonaldTrump/status/1150381394234941448 (“So interesting to see ‘Progressive’ Democrat Congresswomen, who originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they even have a functioning government at all), now loudly......”); Donald J. Trump (@realdonaldtrump), TWITTER (July 14, 2019, 5:27 AM), https://twitter. com/realDonaldTrump/status/1150381395078000643 (“....and viciously telling the people of the United States, the greatest and most powerful Nation on earth, how our government is to be run. Why don’t they go back and help fix the totally broken and crime infested places from which they came. Then come back and show us how....”); Donald J. Trump (@realdonaldtrump), TWITTER (July 14, 2019, 5:27 AM), https://twitter.com/ realDonaldTrump/status/1150381396994723841 (“....it is done. These places need your help badly, you can’t leave fast enough. I’m sure that Nancy Pelosi would be very happy to quickly work out
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